New ACLU Report Highlights Gonzales Role in Detainee Abuse; Calls Civil Liberties Record Mixed, But Not Encouraging

January 3, 2005 12:00 am

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WASHINGTON – In anticipation of this week’s expected confirmation hearings, the American Civil Liberties Union today released a new report on attorney general nominee and current White House Counsel Alberto Gonzales.

Although as a matter of policy the ACLU cannot endorse or oppose nominees for any office other than on the Supreme Court, it can examine and publicize nominees’ civil liberties records.

“There are too many questions swirling around Mr. Gonzales’s role in developing the legal framework that may have led to the torture and abuse we all saw in those Abu Ghraib photographs,” said ACLU Executive Director Anthony D. Romero. “The Senate has a duty not to soft-pedal in its questioning.”

Arguably the most pressing question for the ACLU is whether a document it received from the FBI as part of an ongoing Freedom of Information Act lawsuit is in fact true. In it, an FBI agent describes highly aggressive interrogation tactics, including the use of military dogs, that he says were approved by executive order.

The ACLU report also calls on the Senate to examine a number of different potential blemishes on Gonzales’s civil liberties record, including:

  • His role in developing legal arguments that permitted aggressive interrogation tactics in the months after 9/11, and denying detainees in the “war on terror” any formal legal protections (through which truly innocent captives could at least have some avenue to clear their names). In particular, the ACLU asks the White House to preemptively waive executive privilege for a raft of documents relating to these matters that currently remain withheld.
  • Whether the White House counsel’s office played the leading role in creating the system by which the president could move American citizens from the criminal justice system into detention as “enemy combatants,” without any formal due process protections.
  • Gonzales’s role as the chief administration cheerleader for the system of military tribunals for detainees in the war on terrorism, without the due process protections of the regular military justice system, which was recently halted after a federal court decision questioning its constitutionality.
  • Whether the White House Counsel’s office supported the Musgrave-Allard version of the Federal Marriage Amendment, which would have banned not only same-sex marriage rights, but civil union status as well.
  • The now infamous Texas “clemency memos” drafted by Gonzales for then-Governor Bush, which almost uniformly fail to mention key factors in each case, including evidence of innocence, that supported granting clemency to death row inmates.

The report also notes possible concerns with the unique dynamic of a White House counsel – which could be called “defense counsel for the West Wing” – moving to the head of the Justice Department, which is responsible for investigating criminal activity by high-level government officials. Were the president to face a scandal in his second term, Gonzales would be placed in the awkward position of investigating his friends and former colleagues.

The ACLU does note, however, a few positive marks on his civil liberties balance sheet, namely:

  • Gonzales’s apparent willingness to follow the law, in at least two cases decided during his tenure as State Supreme Court Justice, irrespective of his personal position on abortion or other reproductive rights.
  • His openness to moderate immigration policies.
  • His mitigation of the original White House draft brief in one of the 2003 affirmative action cases, in which he tacitly accepted the notion of admissions policies that take race into account in order to remedy past and current racial discrimination.

Finally, the ACLU notes a number of specific avenues of inquiry for Senators seeking to examine Gonzales’s civil liberties record. Most notably, he should be held to account for:

  • His possible role in approving so-called “ghost detainees” in Iraq, whose existence is illegally kept secret from the International Red Cross.
  • Whether he and others approved of constructing military detention facilities at Guantanamo Bay, Cuba to deliberately create a “legal limbo” for the detainees.
  • What role he played in the events leading up to the virtual revolt of career military lawyers, who were forced to complain to Scott Horton, a human rights lawyer in New York, about efforts to gut legal protections for military detainees.

Notably, this past Friday, the Justice Department released an updated memorandum rescinding an earlier one describing what constitutes “torture” for the purposes of military interrogation. In the new memo, the government backs away significantly from its previously permissive position; the earlier memo was commissioned and reviewed by Albert Gonzales in 2002. Last week’s release should in no way temper the Senate’s questioning of Gonzales, the ACLU said.

“In terms of raw legal authority, the attorney general, especially after 9/11, is the second most powerful government official after the president,” Romero said. “It is imperative that the Senate asks the tough questions to make sure the right person is in the job.”

The ACLU’s report can be found at /gonzales

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